Flavious J. Smith, Jr. and Melanie A. Smith v. the Ranch Owners Association

Opinion filed January 9, 2025

In The

Eleventh Court of Appeals
__________

No. 11-23-00231-CV
__________

FLAVIOUS J. SMITH, JR. AND MELANIE A. SMITH, Appellants
V.
THE RANCH OWNERS ASSOCIATION, Appellee

On Appeal from the 29th District Court
Palo Pinto County, Texas
Trial Court Cause No. C48560

MEMORANDUM OPINION
This is a land use case. Appellants, Flavious and Melanie Smith, sued
Appellee, The Ranch Owners Association, seeking a declaration of their rights under
(1) an alleged easement across the Association’s land, and (2) an alleged irrevocable
license to use a private roadway that is also owned by the Association. In addition,
the Smiths asserted claims for trespass, tortious interference, nuisance, and breach
of contract. The parties filed cross-motions for summary judgment. After a hearing,
the trial court granted the Association’s motion and denied the Smiths’ motion.
The Smiths raise three issues on appeal, contending that the trial court erred
when it (1) found that the alleged easement was not an easement, whether by
necessity, prescription, or estoppel, (2) found that no irrevocable license exists as to
the Smiths’ access to the private roadway, and (3) granted summary judgment in
favor of the Association because genuine issues of material fact exist as to each of
the Smiths’ claims. We affirm in part, and we reverse and remand in part.
I. Factual Background
The Association is a homeowners’ association that governs a single-family
residential subdivision known as “the Ranch” in Palo Pinto County. The Smiths
purchased their home, which is adjacent to the Ranch, from a neighboring residential
subdivision, Hill Country Harbor (HCH), in 2009. The Smiths’ property is not
located within the boundaries of either the Ranch or HCH, and it is not affiliated
with or governed by a homeowners’ association.
There are two alleged easements on the Smiths’ property. The parties refer to
them as Easement A and Easement B, and we will mirror this characterization.
Easement B, which is the subject of the parties’ easement dispute, is located on land
owned by the Association, and it partially borders Easement A as well as the Smiths’
property. Easement A is also located on land owned by the Association.
Easement B consists of a U-shaped gravel road that connects to the public
roadway adjacent to the Smiths’ property, passes in front of the Smiths’ residence,
and connects to the rear of their property, as highlighted in the diagram below:

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The general warranty deed by which HCH conveyed the property to the
Smiths expressly subjects the conveyance to the restrictive covenants declared by
HCH. The deed recites that the Smiths own the property “Together With, all and
singular, the rights, benefits, privileges, easements . . . located thereon.” The deed
also expressly excludes from the conveyance any “[e]asements or claims of
easements which are not recorded in the public records of Palo Pinto County, Texas.”
After purchasing the property, the Smiths obtained a survey of the area and later

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filed an “Affidavit of Use and Access Easement” in the Palo Pinto County records,
which claimed a prescriptive easement on Easement B.
In 2002, prior to the Smiths’ purchase of the property, the Association granted
an express, non-exclusive easement (Easement A) to the property that provides
access to the public roadway; this easement is recorded in the Palo Pinto County
records. In connection with their purchase of the property, the Smiths were granted
a partial assignment of Easement A. Easement A is shown in the diagram above as
the “30’ Access Easement.”
In 2007, HCH granted to all “owners” an “irrevocable license” to “use and
enjoy the equestrian center, gazebo, riding arena, and spa/fitness center.” “Scenic
Drive” is a roadway through the Ranch’s property to HCH’s property, which the
Smiths have used to access HCH’s amenities and property. Later, after purchasing
the equestrian center, the Association constructed a passcode-secured gate across
Scenic Drive, which restricted access to the above route. In doing so, the Association
did not permit the Smiths to use the secured gate to access the HCH amenities and
property. In 2019, the Smiths filed an affidavit of use and access easement to use
Scenic Drive to access HCH and its amenities. Despite this, it is undisputed that the
HCH amenities and property are accessible by an alternate route via public
roadways.
During the course of the litigation, the parties stipulated to certain facts.
Among other things, the parties stipulated that the Smiths currently use Easement B
to access the rear portion of their property, and the Association currently uses it for
access to the Association’s common area for recreational purposes that extend
beyond the Smiths’ property, such as four-wheeling and horseback riding. In 2015
and 2018, the parties attempted, unsuccessfully, to negotiate the grant of a
nonexclusive access easement over Easement B for the Smiths’ benefit.

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In the underlying suit, the Smiths alleged that the Association encouraged its
members to drive loud recreational vehicles along Easement B at all hours of the
night to harass the Smiths. They also alleged that, as another harassing tactic, the
Association routinely parked vehicles and equipment from the equestrian center,
which is adjacent to the Smiths’ property, along the Smiths’ property line. In
addition to their easement claims involving Easement B and the irrevocable-license
claim for access to Scenic Drive, the Smiths asserted causes of action for trespass,
tortious interference with easement rights, and nuisance in connection with the
Association’s alleged activities.
The Association filed a series of motions for summary judgment, each
responding to the claims that had been asserted by the Smiths. The Smiths also filed
a motion for summary judgment contending that they were entitled to an irrevocable
license to access Scenic Drive as a matter of law. Before the trial court ruled on
these motions, both parties filed more comprehensive motions for summary
judgment. The Association moved for traditional summary judgment on all claims
alleged by the Smiths. The Smiths moved for summary judgment for declarations
of their rights regarding the access easement and the irrevocable-license claims.
After the parties filed responses and replies, the trial court granted the Association’s
traditional motion for summary judgment in its entirety 1 and denied the Smiths’
motions. This appeal followed.
II. Standard of Review – Summary Judgment
We review a trial court’s order granting summary judgment de novo. KMS
Retail Rowlett, LP v. City of Rowlett, 593 S.W.3d 175, 181 (Tex. 2019); Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When we review a

1
In their appellate brief, the Smiths state that the trial court granted the Association’s motion for
summary judgment on no-evidence grounds. However, the trial court’s order specifically granted the
Association’s “Motion for Summary Judgment on All of Plaintiff’s Claims,” which asserted only traditional
grounds for summary judgment.
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traditional summary judgment, we take as true all evidence favorable to the
nonmovant, and we indulge every reasonable inference and resolve any doubts in
the nonmovant’s favor. KMS Retail, 593 S.W.3d at 181; Provident Life & Accident
Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We credit evidence favorable
to the nonmovant if reasonable jurors could do so, and we disregard contrary
evidence unless reasonable jurors could not. Samson Exploration, LLC v. T.S. Reed
Props., Inc., 521 S.W.3d 766, 774 (Tex. 2017); Boerjan v. Rodriguez, 436 S.W.3d
307, 311–12 (Tex. 2014) (per curiam).
To prevail on a traditional summary judgment motion, the movant must show
that no genuine issue of material fact exists and that it is entitled to judgment as a
matter of law. TEX. R. CIV. P. 166a(c); KMS Retail, 593 S.W.3d at 181; Nassar v.
Liberty Mut. Fire Ins. Co., 508 S.W.3d 254, 257 (Tex. 2017). The evidence raises a
genuine issue of material fact if “reasonable and fair-minded jurors could differ in
their conclusions in light of all of the evidence presented.” Goodyear Tire & Rubber
Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam).
When the parties file competing motions for summary judgment and the trial
court grants one motion and denies the other, as in this case, we review all of the
summary judgment evidence, determine the issues presented, and render the
judgment that the trial court should have rendered. Lightning Oil Co. v. Anadarko
E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017); Merriman v. XTO Energy, Inc.,
407 S.W.3d 244, 248 (Tex. 2013). Further, when the trial court does not specify the
grounds for its ruling, a summary judgment must be affirmed if any of the grounds
on which the judgment is sought are meritorious. Merriman, 407 S.W.3d at 248;
Knott, 128 S.W.3d at 216 (citing Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623,
626 (Tex. 1996)).

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III. Analysis
A. The Alleged Access Easement
In their first issue, the Smiths contend that Easement B exists as a matter of
law, whether by necessity, prescription, or estoppel. As a result, they contend, the
trial court erred when it granted the Association’s motion for summary judgment
and therefore found that the Smiths do not have an access easement over Easement
B, and denied the Smiths’ motion for summary judgment declaring that they do.
An easement is a liberty, privilege, or advantage without profit granted to a
person, either personally or by virtue of his ownership of a specified parcel of land,
to use another parcel of land for a specific purpose. Daniel v. Fox, 917 S.W.2d 106,
110 (Tex. App.—San Antonio 1996, writ denied). “[E]asements in which the
benefits are for a specified parcel of land regardless of the identity of the owner are
‘easements appurtenant.’” Id. (citing Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d
196, 207 (Tex. 1962)). The parcel owned by the grantor of the easement is the
servient estate and the parcel benefitted by the easement is the dominant estate. Id.
(citing Miller v. Babb, 263 S.W. 253, 254 (Tex. Comm’n App. 1924, judgm’t
adopted)). Easements may be created by (1) an express grant, (2) necessity,
(3) estoppel, (4) prescription, and (5) prior use. Harrington v. Dawson-Conway
Ranch, Ltd., 372 S.W.3d 711, 722 (Tex. App.—Eastland 2012, pet. denied) (citing
Machala v. Weems, 56 S.W.3d 748, 754–55 (Tex. App.—Texarkana 2001, no pet.));
see Hamrick v. Ward, 446 S.W.3d 377, 381–85 (Tex. 2014).
1. Easement by Necessity
The Smiths assert that the summary judgment evidence shows that their
property is surrounded entirely by the Association’s land and that there is no other
point in which to access their “entire” property other than through Easement B.
Moreover, they claim that without access to the rear of their property, which they
assert can only be attained by using Easement B, they cannot exercise their express
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legal right to build additional homes on the property, nor can they access various
improvements located at the rear of their property such as their propane tank, water
and electric lines, an electric transformer, their water pump house, their storage barn,
and over two additional acres of land. In response, the Association argues that
(1) the Smiths’ property is not landlocked because they have another easement by
which to access the property (Easement A), and (2) the Smiths’ desire to use
Easement B is not by necessity, but rather only for mere convenience. We agree
with the Association.
To assert a necessity easement, the party claiming the easement must
successfully demonstrate: (1) a unity of ownership of the alleged dominant and
servient estates prior to severance; (2) that the claimed access is a necessity and not
a mere convenience; and (3) that the necessity existed at the time the two estates
were severed. Hamrick, 446 S.W.3d at 382 (citing Koonce v. Brite Estate, 663
S.W.2d 451, 452 (Tex. 1984)). The standard of proof to establish an implied
easement by necessity is “strict necessity.” Harrington, 372 S.W.3d at 722–24; see
Hamrick, 446 S.W.3d at 383. Under the strict necessity standard, “[n]ecessity means
that the use of the easement must be economically or physically necessary for the
use of the land and not merely desirable.” Payne v. Edmonson, 712 S.W.2d 793,
796 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.) (citing Drye, 364
S.W.2d at 208).
The Association contends that the Smiths have not raised a genuine issue of
material fact regarding element one above—unity of ownership. It asserts that an
easement by necessity requires unity of ownership between the claimant and his
grantor; therefore, because HCH did not own the property on which Easement B lies
when it conveyed the property to the Smiths, no unity of ownership can be
established here. But unity of ownership of the dominant and servient estates must
exist prior to their severance. See, e.g., Staley Fam. P’ship v. Stiles, 483 S.W.3d
8
545, 549 (Tex. 2016) (discussing unity of ownership for a severance that occurred
in 1866); Koonce, 663 S.W.2d at 452 (“The elements needed to establish an implied
easement by necessity are: (1) unity of ownership prior to separation.”). Easements
by necessity are temporary and terminate upon the cessation of the necessity that
created them. Harrington, 372 S.W.3d at 723–24 (holding that a claimant proved
unity of ownership for a severance that occurred in 1901). This includes when the
dominant estate is conveyed to others, but the necessity persists. See Crone v.
Brumley, 219 S.W.3d 65, 70 (Tex. App.—San Antonio 2006, pet. denied) (holding
that the necessity easement was impliedly transferred to the successors-in-interest
upon their acquisition of the property); Rushin v. Humphrey, 778 S.W.2d 95, 97
(Tex. App.—Houston [1st Dist.] 1989, writ denied) (“As successors in interest to the
admitted common source of title, the appellees are entitled to assert whatever
easement rights were acquired.”).
Even so, the only summary judgment evidence submitted by the Smiths
concerning unity of ownership consists of the statements in their verified first
amended petition, which they incorporated into and referenced in their motion for
summary judgment. The Smiths also included and attached to their motion another
verification by Flavious in which he again stated that he had personal knowledge of
the facts alleged in their pleadings and that the factual statements in their motion
concerning the alleged unity of ownership were true and correct. It is well-settled
that pleadings, even if verified, cannot be used as summary judgment evidence.
Laidlaw Waste Sys. (Dall.), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995)
(citing Hidalgo v. Surety Sav. & Loan Ass’n, 462 S.W.2d 540, 545 (Tex. 1971)).
Thus, we conclude that the Smiths did not present any competent summary judgment
evidence that a unity of ownership existed at the time of severance. Nevertheless,
even if they had, they also failed to raise a genuine issue of material fact concerning

9
a continuing necessity because Easement A provides legal and unfettered access to
their property from the public road.
The Smiths do not dispute that Easement A runs within a few feet of the front
door of their home and provides access to the public road. Instead, they argue that
using Easement A to access the rear of their property would require that they
demolish their residence. According to Flavious’s sworn declaration that is attached
to their response to the Association’s third motion for summary judgment, their
house and land that are adjacent to Easement A are “a great deal higher than the
grade level on Easement A, currently requiring steps up to the property.” Even under
the strict necessity standard, the Smiths reason, this evidence raises a genuine issue
of material fact because Texas law does not require that a property owner destroy
their property in order to access it.
The Smiths ground their concerns based on the Texas Supreme Court’s
statement in Hamrick that when a grantor, in conveying or retaining a parcel of land,
fails to expressly provide for a means to access it, “courts will imply a roadway
easement to facilitate continued productive use of the landlocked parcel, rather than
rigidly restrict access.” Hamrick, 446 S.W.3d at 382 (emphasis added) (citing
Alley v. Carleton, 29 Tex. 74, 78 (1867)). The Smiths argue that the term
“productive use” means that “[a]ccess to a property goes beyond simply getting to a
property, but it must instead allow for meaningful and necessary services to arrive
at a home.”
The Smiths direct us to three cases in support of their arguments: Couch,
Pisarski, and Lester. Couch and Pisarski are distinguishable because each involved
only one manner of access, whereas the case before us involves an express easement
(Easement A) as well as an additional, claimed implied easement by necessity (an
access easement over Easement B). See Couch v. Avila Aguilar, 631 S.W.3d 898,
901–02 (Tex. App.—Fort Worth 2021, no pet.); Pisarski, Inc. v. Hong Bui, No. 07-
10
17-00118-CV, 2018 WL 4057285, at *1–2 (Tex. App.—Amarillo Aug. 24, 2018, no
pet.) (mem. op.); see also Adams v. Norsworthy Ranch, Ltd., 975 S.W.2d 424, 429
n.3 (Tex. App.—Austin 1998, no pet.) (distinguishing Teich v. Haby, 408 S.W.2d
562 (Tex. App.—San Antonio 1966, writ ref’d n.r.e.) and Daniel, 917 S.W.2d at 106
on the same grounds). Further, Pisarski concerned the scope and extent of a
necessity easement, not whether an easement by necessity existed in the first place.
Pisarski, 2018 WL 4057285, at *2. Lester is also inapposite because it involved an
easement for an electric utility line, rather than a roadway. Lester v. Conway,
No. 04-15-00730-CV, 2016 WL 7234053, at *1 (Tex. App.—San Antonio Dec. 14,
2016, no pet.) (mem. op.).
Here, it is undisputed that Easement A is an express easement that provides
the Smiths with access to the public roadway from their property. The Smiths
nevertheless claim that Easement A does not sufficiently serve their property to
permit its continued, productive use. Unfortunately for the Smiths, as a matter of
law, an easement by necessity cannot arise when an express easement already exists
and provides access to the property. Duff v. Matthews, 311 S.W.2d 637, 640 (Tex.
1958); see Stiles, 483 S.W.3d at 549; see also Machala, 56 S.W.3d at 755 (“A way
of necessity must be more than a convenience; if the owner of the land can use
another way, he cannot claim by implication a right to pass over that of another to
get to his own.” (citing Bains v. Parker, 182 S.W.2d 397, 399 (Tex. 1944))).
Moreover, neither the cost nor the impediments associated with the access
changes the analysis. For example, in the seminal case Duff v. Matthews, the
supreme court held that although the access road to the claimants’ properties was
overgrown and possibly washed out to the extent it was impassible, those facts did
not create an easement by necessity under the “strict necessity” standard that is
applicable to such easements. Duff, 311 S.W.2d at 642–43. We and several of our
sister courts have consistently followed this approach when confronted with similar
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circumstances. See, e.g., Trujillo Enters., Ltd. v. Davies, 573 S.W.3d 297, 307–08
(Tex. App.—El Paso 2019, no pet.); Clearpoint Crossing Prop. Owners Ass’n &
Cullen’s LLC v. Chambers, 569 S.W.3d 195, 202–03 (Tex. App.—Houston [1st
Dist.] 2018, pet. denied); Harrington, 372 S.W.3d at 725; Adams, 975 S.W.2d at
429; Payne, 712 S.W.2d at 796.
Notably, Pisarski, which concerned the scope and extent of a necessity
easement, relied on Daniel v. Fox, which allowed for a necessity easement when part
of the landowner’s parcel was blocked from access to a public road, but other parts
were not. Pisarski, 2018 WL 4057285, at *2 (citing Daniel, 917 S.W.2d at 110).
The landowner in Daniel presented evidence that the actual cost to construct a bridge
over a stream (thus providing access to the entire tract) was prohibitively expensive;
it would essentially cost more than the value of the land. See Daniel, 917 S.W.2d at
112. Therefore, the court upheld the imposition of a necessity easement to provide
access to the portion of the parcel that was orphaned by the stream. Id. at 113
(relying on several out-of-state cases based on disproportionate cost to gain access
over one’s own land); but see id. at 113 (Duncan, J., dissenting) (“Under Texas law,
a party may not have a way of necessity when he has another legal means of access
to his property.”); see also Harrington, 372 S.W.3d at 724–25 (explicitly rejecting
Daniel’s lowered standard of proof for necessity easements).
As the Eighth Court of Appeals noted in Trujillo, the court in Daniel
recognized the distinction between implied easements “by grant” and those “by
reservation,” and thus analyzed the case under a lesser standard of proof for an
easement by grant. Trujillo, 573 S.W.3d at 307 n.6. Later, the supreme court in
Hamrick discussed the distinction between an easement by grant or by reservation,
but only in the context of implied use easements, and not necessity easements. Id.
(citing Hamrick, 446 S.W.3d at 383–84); see Harrington, 372 S.W.3d at 722–24
(explaining the differing elements and standards of proof applicable to “(1) implied
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easements by necessity, whether by reservation or by grant; (2) implied easements
by reservation; and (3) implied easements by grant”). Because a roadway is involved
here, the standard for a necessity easement—that of strict necessity—controls.
Hamrick, 446 S.W.3d at 382, 384; see Trujillo, 573 S.W.3d at 307 n.6
(“Consequently, the decision in Daniel turned on a standard that is more lenient than
that applicable here.”); Harrington, 372 S.W.3d at 724–25.
In their motion for summary judgment, the Smiths concede the presence of
Easement A and that it provides access to the public road. As summary judgment
evidence to support their assertion that Easement A does not satisfy the strict
necessity standard, the Smiths offered Flavious’s sworn declaration, in which he
states:
The Property benefits from a deeded easement, which Defendant
calls “Easement A” . . . . But because of the location of our historic
home, that deeded easement only allows access to the front of the
house. The only way to access the rest of the property—including our
propane tank used for heating, our water pump house, water and electric
lines, including our transformer, and our storage barn wherein we store
boats, various trailers, and vehicles and the 2+ acres behind our house—
is the easement marked on the survey above. Without the use of the U-
shaped easement [Easement B], we would have to tear down our
historic home to access the rest of our property. Further, the house and
land adjacent to “Easement A” are a great deal higher than the grade
level on “Easement A” currently requiring steps up to the property.
However, even by their own summary judgment evidence, the Smiths admit that
their property is not landlocked and is not without access to a public road. The most
that can be discerned from their statements is that a portion of their property does
not have direct access to the public road, but only because other buildings on their
property block other available means of access. See Trujillo, 573 S.W.3d at 307.
Moreover, Flavious’s statement that the Smiths would need to destroy their
home to access the rear of their property is conclusory. A statement is conclusory if

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it expresses a factual inference or legal conclusion without providing underlying
facts to support that conclusion. Leonard v. Knight, 551 S.W.3d 905, 911 (Tex.
App.—Houston [14th Dist.] 2018, no pet.) (citing Arkoma Basin Expl. Co. v. FMF
Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 n.32 (Tex. 2008)); see Brownlee v.
Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). Conclusory testimony or affidavits are
not competent summary judgment evidence and are insufficient to create a question
of fact to defeat the grant of summary judgment. See Brownlee, 665 S.W.2d at 112;
see also TEX. R. CIV. P. 166a(c) (summary judgment evidence must be credible and
susceptible to being readily controverted).
The stipulated facts show that the Smiths’ house does not strictly abut the
property boundaries in the southeastern corner of their land, but rather that there is
at least some space between the property line and their house. Further, the Smiths
do not offer any competent summary judgment evidence concerning other means of
connecting the rear of their property to its front, such as by modifying the structure
of their home or building a bridge or other means of passage over, under, or around
their home. Though these options may be burdensome, expensive, or even
impractical, courts have consistently required those who claim an easement by
necessity to show that such an easement is a “strict necessity,” even when alternative
means are expensive, difficult, or impractical. See Duff, 311 S.W.2d at 642–43;
Trujillo, 573 S.W.3d at 306–07; Harrington, 372 S.W.3d at 725; Reyes v. Saenz, 269
S.W.3d 675, 677–78 (Tex. App.—San Antonio 2008, no pet.); Adams, 975 S.W.2d
at 429.
We conclude that the Smiths have failed to raise a genuine issue of material
fact regarding the continuing necessity element that is required to establish a
necessity easement. Because an express easement already exists and provides access

14
from their property to the public road, no easement by necessity may arise as a matter
of law. See Duff, 311 S.W.2d at 642–43; Trujillo, 573 S.W.3d at 306–07.
2. Easement by Prescription
The Smiths also assert that they acquired an easement by prescription; the
Association avers that the Smiths have not established that their use of Easement B
met any of the requirements for a prescriptive easement to arise. After carefully
examining the record on this point, we conclude that the Smiths have failed to raise
a genuine issue of material fact as to whether the prescriptive use period reached at
least ten years.
Prescriptive easements are not well-regarded in the law. Harrington, 372
S.W.3d at 716; McClung v. Ayers, 352 S.W.3d 723, 728 (Tex. App.—Texarkana
2011, no pet.). A prescriptive easement is analogous to adverse possession, in that
the hostile and adverse character of the “use” that is necessary to prevail is the same
for both claims. Harrington, 372 S.W.3d at 718 (citing Othen v. Rosier, 226 S.W.2d
622, 626 (Tex. 1950)). A person may acquire a prescriptive easement if he uses
another’s land in a manner that is adverse, open and notorious, without interruption,
and exclusive for at least ten years. Brooks v. Jones, 578 S.W.2d 669, 673 (Tex.
1979); see TEX. CIV. PRAC. & REM. CODE ANN. § 16.026 (West 2002). The burden
is on the party claiming the easement rights to establish all necessary facts. Brooks,
578 S.W.2d at 673.
Here, even assuming arguendo that the Smiths’ use of Easement B
commenced on the day they acquired the property and their use fulfilled the other
elements that are necessary to establish a prescriptive easement, they have failed to
raise a genuine issue of material fact regarding the ten-year period requirement for
using the land. The record shows that the Smiths acquired the property on June 25,
2009, filed their original petition in 2018, and asserted a claim for a prescriptive
easement for the first time on March 15, 2019, when they filed their first
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supplemental petition. 2 Simple math forecloses their prescriptive easement claim—
the period from June 25, 2009, to March 15, 2019, is less than ten years.
Because the entire period the Smiths have owned the property coupled with
when they first asserted their claim of a prescriptive easement equates to less than
ten years, the Smiths would need to “tack on” their predecessors-in-interest use of
Easement B to establish the requisite ten-year period of prescriptive use. See
Boerschig v. Sw. Holdings, Inc., 322 S.W.3d 752, 766 (Tex. App.—El Paso 2010,
no pet.) (“[T]he ten-year requirement may be established by tacking successive
interests if there is ‘privity of estate between each holder and his successor.’”
(quoting CIV. PRAC. & REM. § 16.023)). But the Smiths have presented no summary
judgment evidence that the use of Easement B by their predecessors-in-interest was
adverse and exclusive. Thus, they failed to raise a genuine issue of material fact on
that element.
The Smiths only evidence regarding the use of Easement B by the prior
owners of the land consists of the Walker and Newman affidavits, both of which are
silent as to whether the use of Easement B by any prior owners of land was adverse
or exclusive. Each affidavit merely states, globally, that Easement B has been used
continuously by prior owners. As such, even if the Smiths could successfully raise
a genuine issue of material fact concerning the other prescriptive easement elements,
and we do not hold that they have done so, they have at a minimum failed to raise a

2
In their response to the Association’s third motion for summary judgment, the Smiths assert that
“the present claim” to enforce their prescriptive easement rights was filed on July 19, 2019, in their first
amended petition—more than ten years after their purchase of the property on June 25, 2009. But the
Smiths first raised a claim for declaratory relief concerning their alleged prescriptive easement in their first
supplemental petition, to which they attached the affidavit of use that they filed in the county records. Their
second supplemental petition, filed on March 21, 2019, further buttressed the same claim. See Boerschig v.
Sw. Holdings, Inc., 322 S.W.3d 752, 766 (Tex. App.—El Paso 2010, no pet.) (rejecting the contention that
the ten-year period was not met because suit was filed three days before the ten-year period was achieved
on the grounds that the easement claimant could tack successive interests, rather than on the grounds that
the filing of suit would not have defeated claimant’s claim to satisfying the ten-year period).

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genuine issue of material fact as to whether the prescriptive period satisfies the
necessary ten-year period requirement.
3. Easement by Estoppel
The doctrine of easement by estoppel is an exception to the statute of frauds,
Cleaver v. Cundiff, 203 S.W.3d 373, 375 (Tex. App.—Eastland 2006, pet. denied),
and, “[b]eing a creature of equity, it seeks to prevent injustice and to protect innocent
parties from fraud.” Storms v. Tuck, 579 S.W.2d 447, 451 (Tex. 1979). Under this
doctrine, a landowner may be estopped from denying the existence of an easement
created by “representations” upon which another has detrimentally relied. See
Cleaver, 203 S.W.3d at 375 (quoting Drye, 364 S.W.2d at 209). Once created, an
easement by estoppel is binding upon the successors in title if reliance upon the
easement continues. Id. Each case in which equitable estoppel is sought to be
applied must rest upon its own facts. Vrazel v. Skrabanek, 725 S.W.2d 709, 711
(Tex. 1987). “The gravity of a judicial means of acquiring an interest in land of
another solely by parol requires that equitable estoppel be strictly applied, and the
estoppel ‘should be certain, precise and clear.’” Martin v. Cockrell, 335 S.W.3d
229, 237 (Tex. App.—Amarillo [Panel Op.] 2010, no pet.) (quoting Allen v. Allen,
280 S.W.3d 366, 381 (Tex. App.—Amarillo 2008, pet. denied)).
Three elements must exist to create an easement by estoppel: “(1) a
representation of the easement communicated, either by words or action, to the
promisee; (2) the communication was believed; and (3) the promisee detrimentally
relied on the communication.” Id. (citing Storms, 579 S.W.2d at 452). “These
elements apply at the time the communication creating the alleged easement is
made.” Id. at 238 n.11 (citing Vinson v. Brown, 80 S.W.3d 221, 229 (Tex. App.—
Austin 2002, no pet.)).
The Smiths assert that (1) the seller of the property made representations to
them about access rights via Easement B, and (2) the Association, consistent with
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those rights, built a gate soon after the sale and later built a fence along Easement B.
By those actions, the Smiths reason, the Association acknowledged and ratified the
representations of the seller. Moreover, the Smiths believed and relied on those
representations by assuming the maintenance expenses for the easement.
By the terms of their own argument, the Smiths cannot prove this claim as a
matter of law because the seller of the property in question was HCH, not the
Association. Although the Smiths presented evidence that HCH made
representations about access rights via Easement B, they presented no summary
judgment evidence that the Association made any such representations at the time
of HCH’s communication to them regarding the easement. See Martin, 335 S.W.3d
at 238 n.11. Any implied communications by the Association that later
“acknowledged and ratified” HCH’s earlier representations cannot serve as the basis
for the creation of an easement by estoppel. See id. As they have framed it, the
Smiths’ argument is predicated on their belief and reliance on the seller’s (HCH’s)
representations to them. The Smiths’ summary judgment evidence regarding any
communications by the Association, the owner of the land on which Easement B
lies, concerns only later communications, such as the Association’s involvement in
the construction of the Smiths’ gate and the fencing around Easement B.
We construe easements created by estoppel strictly and require that the
estoppel be “certain, precise and clear.” Martin, 335 S.W.3d at 237 (quoting Allen,
280 S.W.3d at 381). This inelasticity works against more liberal constructions of
the required elements, a construction that the Smiths propose that we adopt in this
instance. We decline to do so. Here, the Smiths failed to raise a genuine issue of
material fact regarding an easement by estoppel.
After carefully examining the record before us, and for the reasons we have
stated, we conclude that the trial court did not err when it granted the Association’s

18
motion for summary judgment regarding the Smiths’ various claims for easement
rights over Easement B. Accordingly, we overrule the Smiths’ first issue.
B. The Alleged Irrevocable License
In their second issue, the Smiths assert that the trial court erred when it granted
the Association’s motion for summary judgment, and denied their cross-motion, on
their argument that they possess an irrevocable license to access Scenic Road and
the Harbor Gate.
The deed from HCH to the Smiths for the property in dispute is subject to
certain restrictive covenants, which includes a provision granting the Smiths the
conditional right to use the amenities of the HCH homeowners’ association. The
Smiths claim that they hold this irrevocable license to use HCH amenities and the
right to travel on Scenic Road to access the HCH development and its amenities,
including a marina, where the Smiths keep their boat.
We need not resolve the question of whether the Smiths hold the rights granted
under this irrevocable license because the use of the Harbor Gate to access Scenic
Drive is not the subject of the irrevocable license. This is so because in a 2007
amendment to the covenant declarations, which is referred to in the restrictive
covenants exhibit to the Smiths’ deed, the HCH owners’ association granted “to each
Owner an irrevocable license to use and enjoy the equestrian center, gazebo, riding
arena and spa/fitness center.”
We must construe the amendment to HCH’s declaration of covenants,
conditions, and restrictions according to the general principles of contract
construction. See Walton v. Midland Mira Vista Homeowners’ Ass’n, No. 11-12-
00214-CV, 2014 WL 4662325, at *4 (Tex. App—Eastland Sept. 18, 2024, no pet.)
(mem. op.) (citing Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998)). In
construing a contract, our primary objective is to ascertain and give effect to the true
intentions of the parties as expressed in the contract. Id. (citing Italian Cowboy
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Partners, Ltd v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011)). We
examine and consider the entire writing in an effort to harmonize and give effect to
all of the provisions of the contract so that no provision will be rendered
meaningless. Id. (citing Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983)). If the
written agreement is so worded that it can only be assigned a certain or definite legal
meaning, it is not ambiguous, and we will construe the agreement as a matter of law.
Id.
The record before us contains only the limited amendment that mentions the
irrevocable license—the rest of the declaration is absent from the record. The license
says nothing about roads or specific means in which to access the amenities, and it
expressly states and refers to the amenities to which owners shall have an irrevocable
license: “the equestrian center, gazebo, riding arena, and spa/fitness center.” It
makes no mention whatsoever of the use of any roads nor does it specify the manner
of access to these amenities.
Although the parties’ dispute on this point concerns the question of the
Smiths’ right to access and use the equestrian center, it is the use of Scenic Drive
that is the primary focus of the parties’ dispute. The Smiths aptly summed up the
issue in their motion for summary judgment, in which they charged that the
Association refused to permit them “use and access to the equestrian center as
required by the license; specifically, the ability to use the gate between the Harbor
and the Ranch developments.” Consistent with this context, the Association
indicated—both in an e-mail and in a filed pleading—its willingness not to contest
the Smiths’ assertion of their right to access and use the equestrian center.
The Smiths argue that the Association’s e-mail indicating that it would not
contest their right to access and use the equestrian center constitutes a binding
Rule 11 agreement, which obligates the Association to permit the Smiths’ full use
and access to Scenic Drive through the Association’s gate. See TEX. R. CIV. P. 11.
20
The Smiths joined a claim for breach of this alleged agreement in their fourth
supplemental petition.
The alleged Rule 11 agreement is not included in the appellate record, and
there is no indication that it was either presented in open court or signed or filed with
the trial court clerk. See id. (requiring Rule 11 agreements to be written, signed, and
filed or else made in open court and entered of record). Further, although a portion
of the Association’s e-mail is included in several of the Smiths’ pleadings and
motions, these filings generally do not constitute competent summary judgment
evidence, and we have not found this e-mail elsewhere in the record. See Weekley
Homes, LLC v. Paniagua, 646 S.W.3d 821, 824 (Tex. 2022). However, even if we
construed the language in the e-mail to be an alleged Rule 11 agreement, the portion
of the Association’s e-mail that is included in various pleadings and motions states:
We are not contesting your clients’ access to the equestrian center
subject to the terms of the referenced license. Therefore, we do not
intend to file a response to your MSJ on the subject. The only response
we might file is that we are not contesting it, therefore, there’s not a
justiciable controversy.

Please let me know if you are going to pull the hearing or if we should
just say that we aren’t contesting Mr. Smith’s access to the equestrian
center and we don’t believe the issue remains in controversy.
As the Association argues, this statement, irrespective of its meaning, does not
encompass the question of the use of Scenic Drive because the qualifier “subject to
the terms of the referenced license” refers that question to an interpretation of the
license and its terms.
The Smiths insist that their use and access to the equestrian center is
inextricably intertwined with their access to Scenic Drive. But nothing in the
Smiths’ deed or in the HCH declarations and amendments (at least what is contained
in the record before us) declares that owners shall have an irrevocable license to use

21
Scenic Drive in order to access any HCH amenities. And the Smiths did not present
any competent summary judgment evidence that raised a genuine issue of material
fact regarding whether the use of Scenic Drive is an amenity as defined in the license,
or that access to Scenic Drive is necessary for the access and use of the amenities
described in the license.
Moreover, the Association presented evidence that the Smiths can access all
HCH amenities, including the equestrian center, without using Scenic Drive.3 The
equestrian center is adjacent to the Smiths’ property, directly to the west and south.
Flavious testified in his deposition that he is able to access the equestrian center
directly from his home, either by vehicle or by foot. The gate to Scenic Drive is
located south of the equestrian center. Flavious further testified that, to access HCH
amenities without using Scenic Drive, he must “drive all the way around now. I
can’t use my golf cart anymore. I have to drive a regular vehicle to get on the road
instead of being able to access my boat [through Scenic Drive].”
Because there is an absence of any summary judgment evidence that the
irrevocable license applies to the use of Scenic Drive, paired with the undisputed
evidence that other, public roads allow for access to all of the amenities identified
by the Smiths’ deed, we conclude that the Smiths failed to raise a genuine issue of
material fact that, assuming they hold the rights as listed in the irrevocable license,
those rights include the use of Scenic Drive. Therefore, the trial court did not err
when it granted the Association’s motion for summary judgment on this issue.
Accordingly, we overrule the Smiths’ second issue.

3
The Association moved for summary judgment on this issue and argued that (1) the Smiths do not
hold rights under the license, (2) the license does not concern access or use of Scenic Drive, and (3) no
Rule 11 agreement was formed as a matter of law. The Association re-urges these arguments on appeal.

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C. The Smiths’ Remaining Claims
In their third issue, the Smiths assert that the trial court erred when it granted
traditional and no-evidence4 summary judgment for the Association on all claims,
despite the existence of genuine issues of material fact as to each of the Smiths’
remaining claims, which include trespass, tortious interference, and nuisance.
Because our conclusion that the Smiths failed to raise a genuine question of material
fact on any of their easement theories also disposes of their causes of action for
trespass and tortious interference—which were predicated on the existence of such
easement rights—we need not address them. See TEX. R. APP. P. 47.1. However,
we must address their third issue as it relates to the trial court’s grant of summary
judgment on the Smiths’ nuisance claim.
1. Nuisance
The Smiths’ assert that they have sufficiently detailed the Association’s
actions and conduct that has substantially interfered with their use and enjoyment of
their land, regarding Easement B as well as their property, namely, ongoing noise
and the parking of foul-smelling and unsightly vehicles nearby. These matters, they
argue, present a fact question on their nuisance claim for a jury to determine.
“The law of ‘nuisance’ seeks to balance a property owner’s right to use his
property ‘as he chooses in any lawful way’ against his duty not to use it in a way
that ‘injure[s] another.’” Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d
580, 590–91 (Tex. 2016) (quoting Gulf, Colo. & Santa Fe Ry. Co. v. Oakes, 58 S.W.
999, 1000 (Tex. 1900)). The Texas Supreme Court has noted that the “application
of these principles gives rise to some of the most difficult questions and delicate
distinctions known to the law.” Id. at 591 (quoting Oakes, 58 S.W. at 1000).

As we have said, although the Smiths state that the trial court granted summary judgment on no-
4

evidence grounds, here, the trial court’s order specifically granted the Association’s “Motion for Summary
Judgment on All of Plaintiff’s Claims,” which asserted only traditional grounds for summary judgment.
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Nuisance is a type of legal injury, not a cause of action in and of itself. See id. at
591, 609. Whether a defendant is liable for creating a nuisance is generally a fact
question for a jury to determine. Id.
The Texas Supreme Court has defined a private nuisance as: “a condition that
substantially interferes with the use and enjoyment of land by causing unreasonable
discomfort or annoyance to persons of ordinary sensibilities attempting to use and
enjoy it.” Id. at 593. The minimum threshold for a nuisance is that it does not
“concern itself with trifles, or seek to remedy all of the petty annoyances and
disturbances of every day life in a civilized community even from conduct
committed with knowledge that annoyance and inconvenience will result.” Id. at
595 (quoting William L. Proser, LAW OF TORTS § 88, at 626 (3d ed. 1964)).
As the Smiths point out, the Association’s arguments here focus on whether
the degree of interference was substantial enough and whether the discomfort or
annoyance it caused was unreasonable enough to rise to the level of a private
nuisance. The Smiths presented summary judgment evidence that the Association,
on numerous occasions, parked vehicles and equipment adjacent to their property.
In its motion for summary judgment, the Association argued that this temporary
action was necessary to address topographical and leveling issues in the area of the
equestrian center where this equipment is customarily kept. Notably, the
Association does not re-urge its arguments on appeal, nor does it cite to any authority
to support its arguments. Rather, it only asserts that (1) the Smiths offer only
speculation, not evidence, (2) Flavious admitted in his deposition that the Smiths
were not interfered with, and (3) because the Smiths purchased property surrounded
by development property, it is presumed that the property will continue to develop,
with accompanying increases in noise and people in the area.
In most instances, such as in this case, the parties’ competing evidence and
arguments would be enough to raise a fact issue as to whether the Association’s
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temporary action constitutes a private nuisance. See id. at 593. We disagree that the
Smiths have not presented competent summary judgment evidence on this point to
counter the Association’s arguments. Moreover, the referenced deposition
testimony by Flavious pertains to the use of Easement B by Ranch employees, not
to whether vehicles and equipment from the equestrian center were parked adjacent
to the Smiths’ property as they claim.
We reiterate the supreme court’s pronouncement in Crosstex that “[w]hether
an interference is substantial or merely a ‘trifle’ or ‘petty annoyance’ necessarily
depends on the particular facts at issue, including, for example, the nature and extent
of the interference, and how long the interference lasts or how often it recurs.”
Crosstex N. Tex. Pipeline, 505 S.W.3d at 595–96 (footnote omitted). We conclude
that fact questions concerning these points remain. Consequently, we sustain the
Smiths’ third issue as to their nuisance claim.
IV. This Court’s Ruling
We affirm in part, and we reverse and remand in part. We affirm the trial
court’s grant of summary judgment in favor of the Association as to all claims raised
by the Smiths except for the Smiths’ nuisance claim. On that claim, we reverse and
remand it to the trial court for further proceedings consistent with this opinion.

W. STACY TROTTER
JUSTICE

January 9, 2025
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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